Richard Garth, C.J.
1. The plaintiff describing herself as 'elder sister and guardian of the minors Preonath Misree and Uma Churn Misree,' brought this suit to recover possession of certain land, the property of the minors, from which she, while acting as their guardian and in possession on their account, had been dispossessed.
2. The defendants, apart from the merits of the case, contended that Preonath Misree had attained majority, and further, that, even if he and his brother were minors, the plaintiff had no right to sue on their behalf, as she held no certificate under Act XL of 1858, and had no permission from the Court to bring the suit.
3. It certainly does not appear that any permission, such as that contemplated by Section 3, Act XL of 1858, was asked for or given; but the Munsif, in disposing of the latter objection, says in his judgment: 'Managers of small properties are competent to bring cases without obtaining a certificate; * * * * thus the plaintiff is in no way debarred.'
4. On the other point he held that Preonath's age was 17 or 18, and that as 21 was the age of majority, he was still a minor.
5. The same objections were raised in appeal, and have again been urged before us.
6. The Subordinate Judge, while rightly holding that in the case of Preonath 18 and not 21 years was the age of majority, says: 'The evidence of Juggeshur Roy shows that Preonath did not complete the age of 18 years when the suit was before the lower Court; that being so, the Munsif's final decision that Preonath was still a minor, when the case was before him, is correct.'
7. On the other point he held, that, though there was irregularity in allowing the case to be brought without a formal application for permission, still the judgment sufficiently showed that permission was given..
8. Now the Munsif did not decide that Preonath was a minor, in the sense that he had not completed the age of 18 years. The witness whom the Subordinate Judge quotes, and on whose evidence the Munsif also relies, simply says: 'Preonath's age is 17 or 18 years.' How, therefore, the Subordinate Judge concludes, that Preonath had not completed the age of 18 years, is not clear.
9. By Section 4* of the Majority Act (IX of 1875) a person completes that age at the beginning of the 18th anniversary of his birthday, when he is, as is commonly understood, 18 years old. So that, even if the plaintiff properly represented the minors, the defendants' objection, that Preonafch was not a minor, has not been properly determined, and the decree, assuming that it is one practically in favour of the minors, is bad.
10. The suit is also open to objection, on the ground that it is brought in disregard of the provisions of Section 440 of the Procedure Code and of Section 8, Act XL of 1858, which must be read together. The former section enacts that 'every suit by a minor shall be instituted in his name by an adult person, who in such suit shall be called the next friend of the minor.' By the latter, persons not holding certificates under the Act can only institute suits connected with a minor's estate with the permission of the Court. As pointed out in the case of Mrinamoyi Dabia v. Jogodishuri Dabia I.L.R. 5 Cal. 450 this permission should, if applied for before the suit is brought, and if granted, be formally recorded. The obtaining of permission should either precede or be contemporaneous with the institution of the suit.
11. A volunteer guardian has not, as the Munsif seems to suppose, any right to sue on behalf of a minor; and the giving or withholding permission is a matter of discretion with the Court. It has been held in several cases, where suits, though really directed against a minor, have been brought against a person described as his relative or guardian, and who has not been properly authorized to act for him, that the decision will not bind the minor, who is not properly on the record as a party.
12. The same principle would seem to apply in the case of a person suing in his own name, and without authority, as guardian of a minor. If the decision is adverse to the minor's interests, it might not bind the minor in any future litigation.
13. That being so, it would be very unjust to compel a defendant to proceed with a suit, in which, if he succeeds, the decision would not bind his opponents; and it therefore seems to follow, that if an objection is made in due time by the defendant that the suit has been improperly brought, that objection should be allowed.
14. In this case we consider that the Munsif was very wrong in not returning the plaint to the plaintiff, in order that the error might be rectified. This is the course which should always be taken in those cases, where the suit is brought in violation of Section 440 of the Code, or of the provisions of Act XL of 1858.
15. We interfere very unwillingly in this case, because it has been tried upon its merits in both the lower Courts, and there seems no reason to suppose that the conclusion at which they have arrived is otherwise than correct.
16. But as the question whether Preonath was a minor has not been properly tried in either Court, we feel bound to send the case back to the first Court for the trial of that question. If Preonath was a minor, the judgment may be in favour of both the minor plaintiffs. If he is not a minor, the lower Court, if it thinks fit, may dismiss the suit as regards Preonath (in which case he will be at liberty to bring a fresh one), and give a decree in favour of the other plaintiff only. The costs in this Court and in the lower Appellate Court will abide the result.
*[Age of majority how computed.
Section 4: In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of Section 3 at the beginning of the twenty first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of the eighteenth anniversary of that day.]